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ALTEMOSE COMPANY (SHERATON) v. COMMONWEALTH PENNSYLVANIA (07/15/81)

decided: July 15, 1981.

ALTEMOSE COMPANY (SHERATON), PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND PENELOPE FRAIPONT, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Penelope Fraipont v. Altemose Company (Sheraton), No. A-77121.

COUNSEL

Charles W. Craven, Marshall, Dennehey, Warner, Coleman & Coggin, for petitioner.

Charles C. Hansford, for respondent, Penelope Fraipont.

Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 60 Pa. Commw. Page 513]

Employer-Sheraton Hotel appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision to set aside a final receipt executed by Employee-Claimant. We remand.

On August 16, 1974, while working for Employer as a "room service girl," Claimant suffered a dislocation of her left knee. Consequently, Claimant underwent knee surgery and began a rehabilitative program supervised by Employer's physician. During the post-operative recovery period Claimant was unable to work and received workmen's compensation benefits. Claimant returned to work at the Sheraton Hotel on November 4, 1974, and was assigned lighter duties. On November 19, 1974, Claimant signed a final receipt pursuant to Section 434 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1001.*fn1 A change in the demands of Claimant's job, coupled with Claimant's knee impairment, forced Claimant to terminate her employment with the Sheraton Hotel on March 25, 1975.

[ 60 Pa. Commw. Page 514]

Claimant remained unemployed until October 7, 1975, when she became a secretary-receptionist for a chemical company. Claimant subsequently discovered that the prolonged periods of sitting attendant to her work, caused her leg to become stiff and sore, thereby making her job untenable. Thus, Claimant left the chemical company on April 1, 1976, and did not thereafter seek new employment.

Expressed as clearly and concisely as possible, Employer's two arguments in this appeal are that (1) Claimant's petition to set aside the final receipt should be denied because Claimant's disability had completely ended by the time Claimant executed the final receipt and, in the alternative, (2) if the final receipt is set aside, then the original compensation agreement should be modified because Claimant's disability has decreased.

"In an action to set aside a final receipt, the claimant must prove by clear and convincing evidence that all disability had not terminated when the final receipt was executed." Interstate United Corp. v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 385, 390, 424 A.2d 1015, 1018 (1981). "The legal conclusion of disability rests upon a finding of loss of earning power." Patel v. Sauquoit Fibers Co., 56 Pa. Commonwealth Ct. 279, 281, 424 A.2d 621, 622 (1981). Because the instant Claimant prevailed before the compensation authorities, this Court's scope of review consists of "determining whether there has been an error of law or a lack of substantial evidence to support the referee's findings of fact." Interstate United Corp., 56 Pa. Commonwealth Ct. at 390, 424 A.2d at 1018.

The record in this case contains extensive testimony from Claimant, the depositions of two orthopedic surgeons, and a ...


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